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concluding the complainant's outcry statement was admissible under article 38.072 where the complainant was twenty years old at the time of trial
Summary of this case from Banda v. StateOpinion
No. 05-08-00527-CR
Opinion Filed November 10, 2009.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80164-06.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.
OPINION
Eli Sanchez Olivera was convicted of three counts of aggravated sexual assault of a child and one count of indecency with a child, and the trial court sentenced him to concurrent sentences of twenty-five years and twenty years in prison, respectively. In six issues, appellant argues that the trial court erred by admitting the complainant's outcry statement, that the prosecutor improperly "struck" at appellant "over the shoulders of defense counsel," and that the evidence is legally and factually insufficient to support the convictions. We affirm the trial court's judgment.
By asserting that the prosecutor improperly "struck" at him "over the shoulders of defense counsel," appellant is arguing that the prosecutor's jury argument attacked defense counsel personally in a manner that explicitly impugned defense counsel's character. See Moseley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1984).
Factual Background
A five count indictment was returned against appellant. Counts one, two, and three alleged aggravated sexual assault of a child, and counts four and five alleged indecency with a child. The jury convicted appellant of counts I-III and count V of the indictment, but failed to reach a verdict on count IV. The trial court sentenced him to concurrent sentences of twenty-five years in prison for counts I-III and twenty years in prison for count V. This appeal followed. The complainant in this case, who will be referred to in this opinion as "V," was twenty years old at the time of trial. She testified that she was born in Dallas, Texas. Her first years of life were spent at the home of her maternal grandmother in Frisco, Texas. When V was approximately five years old, her family moved to an apartment in Ana, Texas, where she lived with her father, mother, and two brothers. V testified that her father (appellant) began sexually abusing her when she was approximately four or five years old and continued to abuse her periodically until she was approximately twelve or thirteen years old. She recalled, for example, that her father would not give her "normal" hugs like her uncles and brothers, but that he would hug her "really tight," rub his chest against her, and kiss her on the lips. Appellant continued to kiss V on the lips as she grew older and approached puberty. In addition, appellant would order V to lie down on the floor or on a sofa and bend her legs. After turning on the television, he would then rub the inside of V's vagina with his finger. He would usually "just feel around [V's] vagina," rubbing inside the vagina and touching her clitoris. On one occasion, however, when V was four or five years old, she started to bleed after appellant scratched her vagina. She remembered that the scratch "stung a little bit" and that she was frightened. After appellant scratched her, V ran to a nearby bathroom, sat on the toilet, and started to cry. Appellant told her, "[D]on't worry, it was just a scratch." On another occasion, when V was approximately four or five years old, appellant inserted the antenna of her brother's walkie-talkie into her vagina and moved it "up and down" and "around" her vagina. In addition to feeling inside her vagina, V claimed that appellant abused her in other ways. She recalled one incident where appellant told her to perform oral sex on him. When she refused, he said it was `like sucking your thumb" and told her to practice by sucking on his thumb. V did this before finally performing oral sex on appellant. Another incident occurred when they were both reclining on a sofa while watching television. As she was about to get up, appellant grabbed V from behind and "pushed himself against [her]." V could feel appellant's erect penis rubbing against her through their clothing. On another occasion, appellant told V to lie on top of him in bed and rub her vagina over his exposed penis. Appellant would periodically get out of bed and masturbate while facing towards the wall, then he would return to bed and ask V to continue rubbing her vagina over his penis. V also described other forms of abuse. One incident involved appellant pulling down V's pants and looking at her vagina, and comparing how it looked when she was younger to how it looked as she grew older. Another incident occurred when they were in the living room watching television. Appellant told V, who had just started to wear training bras, that he could tell she was "really growing up" because her breasts were "getting bigger." He then reached under her shirt and put his hand on one of her breasts, telling her that "one day you'll be the size of my hand." V testified that, as she grew older, appellant became very protective of her. She recalled that she was once sitting on a couch in the living room next to a boy, Ruben, with her brothers sitting on another couch nearby. It was late at night and they were watching television. Appellant walked into the room and noticed V and Ruben sitting together on the couch, with Ruben's left leg resting on V's right leg. Later, appellant called V into his room and, after closing the door, started yelling at her. He asked her if she wanted to be a "f*****g slut" and put his hand around her neck, and then asked her whether she was still a virgin. V replied that she was a virgin. Appellant told her, "I want to check to see if you're still a virgin." She initially said no but finally agreed to allow appellant to examine her because she just wanted to "get this over with." After V got on the bed and spread her legs, appellant used his finger to open her vagina and "[look] around" On another occasion, when V was ten or eleven years old and first started to experience vaginal bleeding, appellant ordered her to sit on the toilet and spread her legs. He told V that he was "checking [her] down there to see if [she] did lose [her] virginity." Another time, appellant told V that he wanted to teach her how to protect herself from a rapist. He laid on top of her with her legs spread apart and pressed against her, telling her that she should try to free herself and then kick him in the groin. She remembered doing this twice. V also remembered that, during this incident, appellant tried to show her how to resist an attacker by ordering her to reach inside his pants and squeeze his testicles. As she did this, he told her, "[T]hat's what hurts." Appellant then said, "[T]hat's the way, okay, you can leave now." The first time that V told anyone about the abuse in any detail was when she reached the age of seventeen and became engaged to her fiancé, Chad. According to their testimony, V met Chad in February 2002, when he was in living in Texas and negotiating the lease for a CiCi's pizza restaurant that he intended to open in Orlando, Florida. By April 2002, shortly before Chad moved to Florida to open the restaurant, he and V were engaged to be married. V moved to Florida later that year. Chad testified that, in 2002, when he and V were living in Florida and engaged to be married, she told him that appellant had inserted a walkie-talkie antenna into her vagina, made her perform oral sex on him, rubbed her vagina over his penis, and that appellant "used to routinely check her to make sure if she was still a virgin." V indicated that she told Chad about the abuse in "late 2002." V said that she decided to tell her fiancé about the abuse because she "wanted him to know everything about me, about my past, about everything." V and Chad were married in February 2003, shortly after V's eighteenth birthday. On the same day that V and Chad were married, appellant asked V's mother for a divorce. After V's father and mother divorced, V contacted the Collin County Sheriff's Office in February 2004 and reported appellant's abuse. By that point, appellant had remarried and moved in with his new wife and her two young daughters. V testified that she was motivated to report appellant's abuse because she feared he would abuse his step-daughters just as he had abused her. V believed that appellant's abuse continued to affect her as an adult. She noted, for example, that she started to consult a therapist in March 2006 because she experienced "a really bad anxiety attack." V also stated that, before seeing the therapist, she was having trouble engaging in some forms of sexual intimacy with her husband. V claimed that a combination of therapy and other remedies helped her eventually realize that "what happened to me was not my fault." V testified that, before turning seventeen, she attempted only once to report appellant's abuse. When she was nine years old, V tried to tell her mother and grandmother about appellant's behavior. But V could not remember whether she provided any details regarding the abuse or whether her mother and grandmother understood what she was trying to tell them, and, in any event, they took no action. V explained her silence by noting that, when she was very young, she did not realize that appellant's behavior was inappropriate. She knew from a very early age that appellant, who, in addition to building houses and selling cars, was also a preacher, treated her differently from any of the other men in her life. But V thought that her father, whom she called "a caring dad," loved her "to the point where [she] thought [it] was the right way to be loved." She also said that she thought appellant's behavior "was normal" and that "every father did that to their daughter." As she grew older and reached puberty, V started to see appellant's behavior in a different light, but she thought the abuse should be kept secret because her father told her not to tell anyone about it. Appellant also said that "[h]e would get into trouble" if she told anyone about the abuse. V claimed that she was also influenced by a strong spiritual upbringing to believe that "turning against your father was a sin in the Bible." When, for example, she would tell appellant that she remembered what he had done to her, "he would say, let's pray and ask God for forgiveness." He would ask, "[D]o you forgive me?" V thought she was a sinner and that she was "going to go to hell." In addition to V and Chad, the State presented testimony from Tony Bradley, a child abuse investigator with the Collin County Sheriff's Department. He testified that, when interviewing V, he did not see any "red flags" indicating that she was vindictive or had some sort of vendetta against appellant. According to Bradley, V's "primary reason for coming forward" was "the welfare of the other children who were in the home with [appellant] at the time." Bradley noted that V was able to describe specific acts and distinguish between those acts, and that she appeared to be describing things that had actually happened. V's mother, Connie Sanchez Olivera, testified for the State that it was difficult for her to accept that appellant had molested their daughter, but she now believed V was telling the truth. Looking back at appellant's relationship with V, Connie testified that appellant was "very protective" of V and did not allow her to spend the night at friends' houses. Appellant "wanted [V] to be home" and did not believe it was "right for her to go out." Connie also recalled that appellant "was hugging [V] too much" and seemed to be "beside her all the time." Several of V's cousins from her mother's side of the family — Belinda Calderon, Naomi Reyna, and Amanda Sanchez — described seeing appellant hugging V inappropriately and kissing her "on the lips." Belinda Calderon, for example, testified that, unlike her other cousins, V was not allowed to spend the night alone at her house. Belinda described appellant as "sometimes overprotective" and said that, when V did spend the night, appellant insisted on accompanying her and would not allow V and Belinda (who was six months older than V) to lock the door to their room. Belinda claimed that appellant did not give V "normal" hugs like her father or the other men in her family. According to Belinda, appellant would embrace V "from the behind" with the full length of his body, including his genital area, and hug V "really tight." As he hugged V, appellant would sometimes "rub his head towards her head." Belinda experienced these kinds of "creepy" hugs from appellant and remembered that they "didn't feel right." She also saw appellant kiss V "on the lips." Belinda tried not to spend too much time alone with appellant "[b]ecause we were scared of him." On one occasion, when she was fourteen or fifteen years old, appellant approached Belinda from behind, grabbed her in a tight embrace, and bit her shoulder "really hard." She told appellant to stop touching her, and appellant never touched her again. Naomi Reyna testified that V's parents were "really strict" with her and that she never spent the night at Naomi's house. When Naomi (who was approximately one year older than V) and her sister spent the night at V's house, appellant would sometimes walk into their room and stretch out on the bed next to V. The manner in which appellant reclined on the bed reminded Naomi of "something a husband and wife would do or [a] girlfriend or boyfriend." At other times, appellant and V would sit closely next to one another on a reclining chair and huddle under a blanket. Naomi, who was sitting nearby, remembered seeing "expressions on [V's] face that were kind of like terrifying." When the blanket was pulled away, Naomi would periodically see an erection through appellant's clothing. Naomi claimed that appellant kissed V "[o]n the lips" and that he tended to hug her "[r]eally close," either caressing V's "back or hugging [her] from up front and rubbing his head on [V's] shoulder." Naomi said she received similar hugs from appellant and that they "felt awkward because [her] father didn't even hug [her] like that." When she visited V's house, Naomi "never wanted to be alone with" appellant. Amanda Sanchez testified that V was never allowed to spend the night at her house because appellant, whom she described as "very controlling," would not allow it, but Amanda sometimes visited V's house. When she was around V and appellant, Amanda noticed that appellant kissed V "on the lips" and that he hugged her more like a "boyfriend" than a "father." Amanda also testified that appellant hugged her in the same way, that is, he caressed Amanda with his arms, held her body very tightly, and rubbed himself against her. Amanda recalled that appellant sometimes held her so tightly that she could feel his penis pressing against her body through his clothing. Amanda said this form of touching "was very creepy" and "made [her] feel very out of [her] skin." When Amanda told her mother about appellant's behavior, she told Amanda (who was then sixteen or seventeen years old) to avoid being alone with appellant. Dan Powers, a senior director of clinical administrative services for the Collin County Children's Advocacy Center, testified as an expert witness for the State concerning how, among other things, childhood sexual abuse affects its victims. He explained that it was very common for children who were sexually abused to be burdened by guilt, and that it was a "very common dynamic for children to feel like the abuse is their fault." He also said that child victims may often attempt "to tell somebody" about the abuse, "but not necessarily right away." He noted that it was quite common for children to delay reporting abuse by a matter of days, weeks, or even years. Later, as they become adults and start dating and getting married, these child victims, if untreated, may have trouble with sexual intimacy or experience "a heightened sense of urgency" to keep their own children safe. Powers also said that sexual offenders are manipulative, and one of the many ways in which they manipulate children is by using religious beliefs or spirituality, that is, telling the child "that they need to ask for forgiveness for what has happened." Appellant did not testify before the jury. His defense presented testimony from relatives and friends who claimed, among other things, that they never saw him engage in any improper behavior. Valerie Nobles, a childhood friend of V's, testified that V and her father appeared to be close and that they seemed to have a "normal relationship." Eva Olivera, appellant's mother, testified that appellant and V seemed to have a normal father and daughter relationship, and she did not see anything unusual in that relationship. She saw what she believed was "very paternal love as it is between a father and a daughter." Jimmy Lee Slater, a former youth pastor and later associate pastor at appellant's church, testified that he had known appellant and V for many years and that V appeared to be part of a "very close-knit family." He describe V as an "outgoing" and "very happy young lady." As far as Slater knew, V "basically loved her family." Abby Liset Vanegas, appellant's eldest step-daughter, stated that appellant had never done anything to her that was "even close to inappropriate." Eliseo Olivera, Jr., appellant's nephew, testified that, when he was a child, V and her family lived on a property behind his boyhood home in Ana, Texas. He attended school with V from kindergarten through the eighth grade and frequently saw her at weekend church and church-related functions. He described his relationship with V as "close" and said that "she was like another sister to me." When asked whether, in his observations of V and her interactions with appellant, he sensed or saw "anything that was inappropriate," he responded, "No, sir."Discussion Outcry Statement
In his first issue, appellant argues that the trial court abused its discretion when it admitted V's outcry statement to Chad into evidence because V was seventeen years old when she made that outcry statement. Background V testified that the first person she spoke to in any detail about appellant's sexual abuse was her fiancé, Chad. At trial, defense counsel argued that V's outcry statement to Chad was inadmissible under article 38.072 of the Texas Code of Criminal Procedure because V was over the age of twelve when she outcried and, accordingly, her outcry statement was not made while she was still a "child" under the statute. The trial court overruled the objection and permitted Chad to testify. Standard of Review and Applicable Law The outcry statute allows for the evidentiary admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years of age or younger. See Tex. Code Crim. Proc. Ann. art. 38.072, § 1 (Vernon 2005); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd). It applies only to statements made (1) by the child against whom the offense was allegedly committed, and (2) to the first person, eighteen years of age or older other than the defendant, to whom the child made a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a) (Vernon 2005). Certain outcry statements are excepted from the hearsay rule of exclusion. Id. § 2(b); Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). To be a proper outcry statement, the child's statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. Sims, 12 S.W.3d at 500 (citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)). The proper outcry witness is the first adult to whom the complainant tells "how, when, and where" she was assaulted. Hanson v. State, 180 S.W.3d 726, 730 (Tex. App.-Waco 2005, no pet.) (citing Sims, 12 S.W.3d at 500)). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. Sims, 12 S.W.3d at 500. The standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Analysis Appellant argues that article 38.072 applies only to statements made by children twelve years of age or younger, and that V's outcry to Chad at the age of seventeen was therefore inadmissible. The State responds that appellant misinterprets article 38.072 and that the error, if any, was harmless. We will address both of these arguments. Beginning with the State's first contention, we note that, although there is no case from this Court specifically addressing appellant's argument, in Harvey v. State, 123 S.W.3d 623 (Tex. App.-Texarkana 2003, pet. ref'd), the complainant was twelve years old at the time of the offense (aggravated sexual assault of a child), eighteen years old at the time of her outcry, and nineteen years old at the time of trial. Id. at 627. The court reviewed various statutory definitions of the words "child," "minor," and "adult," and found two distinguishable groups of definitions, i.e., those that simply draw the line at eighteen years of age and those that added marriage or removal of disabilities as additional conditions. Id. at 628-29. The court reasoned that article 38.072 belonged in the group of statutes that simply drew the line at eighteen years of age because it "was designed to protect the child's person." Id. at 629. The court then concluded that, for article 38.072 to apply,not only must the offense have been committed against a child twelve years of age or younger, but also the victim, while still a child — that is, not having reached his or her eighteenth birthday — must have confided the details of the ordeal to a person eighteen years of age or older. Failure of the second criterion renders article 38.072 inapplicable. As a result, the trial court should not have permitted Kelly to testify with the content of [complainant's] outcry statement.Id. Turning to the question of harm, the Harvey court concluded that appellant's substantial rights were not affected under rule 44.2(b) of the Texas Rules of Appellate Procedure because the outcry testimony was "merely cumulative of other evidence properly admitted," e.g., the complainant's testimony that appellant molested her two or three times a month since she was eight years old and impregnated her when she was twelve, and the results of the paternity tests that showed appellant was the father of the complainant's child to a 99.9999 percent certainty. Id. at 631. As part of its discussion of the applicable law, the Harvey opinion mentioned an unpublished opinion from the Austin Court of Appeals that is also cited by the State in the present case, Manuel v. State, 03-96-00185-CR, 1997 WL 347998 (Tex. App.-Austin June 26, 1997, pet. ref'd). In Manuel, the appellant argued that even though the complainant was allegedly molested before she reached the age of thirteen, her outcry statement was not made until after her thirteenth birthday, thereby rendering article 38.072 inapplicable. Harvey, 123 S.W.3d at 628 (citing Manuel, 1997 WL 347998 at *2-3). The Austin court concluded that article 38.072 limits only the age of the victim at the time the offense was committed and does not require the outcry statement to have been made before the victim turned thirteen years of age. Id.; see also Robbins v. State, No. 07-05-0207-CR, 2005 WL 2898067, at *1 (Tex. App.-Amarillo Nov. 3, 2005, no pet.) ("victim's age when the offense is committed triggers whether the statute applies, not the victim's age at the time the outcry is made"). Although Harvey concluded that an outcry statement made after a complainant reaches the age of eighteen years is inadmissible under article 38.072, that issue is not before us. In this case, as in Manuel, the complainant was molested before she reached the age of thirteen and she outcried between the ages of thirteen and eighteen. See Manuel, 1997 WL 347998, at *3. Neither Harvey nor Manuel interpreted article 38.072 to require the outcry statement to have been made before the complainant turns thirteen years of age. See Harvey, 123 S.W.3d at 629; Manuel, 1997 WL 347998, at *3. The statute applies to proceedings in the prosecution of offenses committed against children twelve years of age or younger. See Tex. Code Crim. Proc. Ann. art. 38.072, § 1 (Vernon 2005). We have found no case law authority suggesting that an outcry statement made, as in this case, when the complainant is older than twelve but younger than eighteen years of age is inadmissible under article 38.072, nor has appellant cited any such authority in his brief. We conclude that V's outcry statement was admissible under article 38.072. Turning to the State's second contention, we further conclude that, even if the trial court somehow erred in admitting V's outcry statement, the error was harmless. Rule 44.2(b) provides that we must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Tex. R. App. P. 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). Under rule 44.2(b), an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (citing Garcia v. State, 126 S.W.3d 921, 927 n. 9 (Tex. Crim. App. 2004)); Bourque, 156 S.W.3d at 677. In this case, V testified that appellant sexually abused her from the time she was four or five years old. She described in detail how appellant inserted both his finger and a walkie-talkie antenna into her vagina, made her give him oral sex, felt her breast and vagina, and rubbed his penis against her vagina. V's testimony was partially corroborated by the testimony of her cousins. They claimed, among other things, that they saw appellant behaving strangely towards V when she was a child by hugging her closely, kissing her on the lips, and refusing to allow her to spend the night alone at her cousins' houses. Tony Bradley, the Sheriff's Department investigator, testified that V did not seem vindictive and appeared to be motivated by a concern for the welfare of her step-sisters. Accordingly, we conclude appellant's substantial rights were not affected by the admission of the outcry testimony because it did not have a substantial and injurious effect or influence in determining the jury's verdict. We overrule appellant's first issue.
Closing Arguments
In his second issue, appellant claims that, during closing arguments, the prosecutor improperly "struck" at appellant "over the shoulders of defense counsel." Background According to the record, defense counsel began his closing argument as follows:May it please the Court, madam prosecutor, ladies and gentlemen, there's no doubt in my mind the prosecutor believes this story. In fact, that was probably one of the best displays of believing something to be true that I've ever seen.
But once again, our statements here aren't the evidence. The evidence is what you saw there. We're supposed to summarize it, giving you direction to see it. I don't believe we're supposed to act it out and act emotional and be all gun hoe [sic] about it. We're supposed to lay it out there and let you decide. That's what I'm going to do, just lay it out there and let you decide.After defense counsel gave his closing argument, the prosecutor began the rebuttal portion of her closing argument with the following statement: The suggestion that there was not supposed to be emotion connected to this woman is absurd. If you can't feel emotion when you see the pain of a woman who was betrayed by the one man in her life who was supposed to love her, you're not human. If you can't feel the pain when you watch another human being in agony, you're not human. If you can't get angry and riled up at a man touching a child, then you're like him. Appellant claims that this argument by the prosecutor "constituted a clear attack on defense counsel's character," and was therefore improper jury argument. Standard of Review and Applicable Law Proper jury argument generally must encompass one of the following areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from the evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Magana v. State, 177 S.W.3d 670, 674 (Tex. App.-Houston [1st Dist.] 2005, no pet.). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the record. Magana, 177 S.W.3d at 674. The State may not use closing argument to "strike" at a defendant over the shoulders of his counsel or accuse counsel of bad faith. Magana, 177 S.W.3d at 674; see also Mosley v. State, 983 S.W.2d 249, 258-59 (Tex. Crim. App. 1984). A prosecutor runs the risk of improperly "striking" at a defendant over the shoulders of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character. Mosley, 983 S.W.2d at 259; Magana, 177 S.W.3d at 675. It is, however, permissible for a prosecutor to attack the defense's argument rather than defense counsel. See Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); Magana, 177 S.W.3d at 675. And if defense counsel invites argument, it is appropriate for the State to respond. See Swarb v. State, 125 S.W.3d 672, 686 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). Analysis In this case, appellant did not object to the complained-of argument. Under Rule 33.1 of the Texas Rules of Appellate Procedure, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. Tex. R. App. P. 33.1; Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Rule 33.1 applies to objections to jury argument. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). By not raising his complaint in the trial court, appellant failed to preserve any error. See Tex. R. App. P. 33.1; Threadgill, 146 S.W.3d at 667. Moreover, assuming appellant preserved his second issue for appellate review, his argument fails on the merits because the prosecutor's argument was a response to defense counsel's argument. During his closing argument, defense counsel suggested the prosecutor had put on a "display" in her initial closing argument. He then stated that it was improper for an attorney to "act it out and act emotional and be all gun hoe [sic] about it." The prosecutor's statement that "[i]f you can't feel emotion . . . you're not human" was, therefore, a response to the defense's suggestion that she had improperly displayed emotion during her jury argument. Accordingly, the State's jury argument was not improper. See Swarb, 125 S.W.3d at 686. We overrule appellant's second issue.